Decision #98/00 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on August 16, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on August 16, 2000 and again on October 4, 2000.
Issue
Whether or not the claimant’s deemed post accident earning capacity should be $311.60 per week (later adjusted to $314.78 as a result of indexing); and
Whether or not the claimant is entitled to a new vocational rehabilitation program.
Decision
That the claimant’s deemed post accident earning capacity should be at minimum wage retroactive to October 1, 1998; and
That the claimant is not entitled to a new vocational rehabilitation program.
Background
On August 4, 1989, the claimant injured his back region while lifting and carrying a solid core door. The claimant was eventually diagnosed with a L4-5 left central and paracentral disc protrusion. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received compensation benefits which included vocational rehabilitation services.
Through the assistance of the WCB, the claimant obtained part-time employment in March 1996 as a parts delivery driver. The claimant has permanent restrictions to refrain from bending, prolonged twisting, turning, stooping, squatting or heavy lifting.In September 1996, an impairment awards medical advisor determined that the claimant had full range of motion in his spine and therefore was not entitled to a permanent partial impairment award.
On September 11, 1998, the claimant was advised by an Employment Specialist that an earning capacity review had taken place. Based on labour market information and in accordance with policy 44.80.80.20, Wage Loss Reviews, it was determined that he was capable of earning a weekly amount of $311.60 (later adjusted to $314.78 as a result of indexing).
In October 1998, the claimant was laid off from his employment as a parts delivery driver. On November 23, 1998, the Employment Specialist wrote to the claimant advising that further to his recent layoff, it was determined that he was not entitled to additional services as he continued to have an earning capacity and was not considered to be “competitively disadvantaged”.
On November 24, 1998, a worker advisor contended that the claimant’s earning capacity review was inappropriate given the claimant’s restrictions and should never have been implemented. The worker advisor also believed that policy 43.20.20, 3c©© should have been initiated at the time of the claimant’s termination with the company. Submitted with the letter was a copy of a note from the treating physician dated November 19, 1998, which indicated that the claimant was to avoid heavy lifting over 20 pounds and no lifting over the shoulder.
In a December 21, 1998, letter, the employer stated indicated to the WCB tthat the reason the claimant’s employment was terminated was due to a note from the attending physician which stated that the claimant was able to perform light duties only and no heavy lifting. “As his job requires occasional heavy lifting, it was determined that he was no longer capable of doing the job he was hired to do.” In a subsequent letter dated March 15, 1999, the employer indicated that it was virtually impossible to determine exactly what, when, how heavy, and how frequently their drivers would be called upon to lift. They required people who were capable of lifting and delivering parts of all shapes, sizes and weights on a regular basis as required. In the 2 ½ years that the claimant worked with the company, the employer indicated that they quite possibly had to make concessions for his restrictions. There were in a position to do so, somewhat because of the number of drivers they had available. Recently, they had been downsizing the location that the claimant worked at, and transferring positions whenever possible to continue employment. With the downturn of business in their industry, they unfortunately no longer had the capability of making these concessions.
On January 13, 1999, a Vocational Rehabilitation Consultant (VRC) wrote to the claimant and worker advisor. The VRC confirmed that the claimant’s earning capacity of $311.60 per week was appropriate and that policy 43.20.20, 3C was not applicable as the claimant was not competitively disadvantaged. On March 25, 1999, the worker advisor appealed this decision to Review Office.
On July 30, 1999, Review Office determined that the claimant’s deemed post accident earning capacity should be $311.60 per week and that the claimant was not entitled to a new vocational rehabilitation program.,
Review Office stated that it was of the opinion that the claimant was capable of full time work within the general restrictions suggested by a WCB medical advisor on January 20, 1999 which included that the claimant was capable of lifting a maximum of fifty pounds. Review Office placed particular weight on the following factors when reaching this decision: the claimant had a non-surgical back injury; he had full range of motion when examined by a WCB medical advisor on September 6, 1996; the claimant did not fully co-operate with the functional capacities assessment performed on July 15, 1999.
Review Office considered the claimant to be capable of working as a parts driver or at a similar position and was employable within an existing viable job market. There was therefore no basis for providing the claimant with further vocational rehabilitation services. On November 22, 1999, the worker advisor appealed Review Office’s decision of July 30, 1999, and the case was referred to the Appeal Commission.
On February 23, 2000, an Appeal Panel hearing was held. The hearing was adjourned as the claimant’s representative did not have pertinent file correspondence that the Panel decided was relevant to his case and the issue under appeal. Arrangements were subsequently made to reconvene the hearing on March 9, 2000.
On March 7, 2000, the claimant requested that the March 9, 2000 hearing be cancelled. The Appeal Panel agreed to adjourn the hearing sine die. On June 13, 2000, the claimant’s representative requested that a hearing be convened and submitted additional information from the claimant’s attending physician dated May 17, 2000.
Reasons
The issues in this appeal are whether or not the claimant’s deemed post accident earning capacity should be at the current level ($ 314.78) and whether or not the claimant is entitled to a new vocational rehabilitation program/plan.
The relevant subsection of the Workers Compensation Act (the Act) is subsection 27(15) which states:
“The board may provide for any injured worker, whose earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured worker for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training, and may adopt rules and regulations for that purpose and for the payment of the training.”
Relevant WCB policies in this appeal are Section 43.00, Rehabilitation and Section 44.80.30.20, Deemed Earning Capacity.
In this appeal we reviewed all the evidence on file and received during the hearing process and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant’s deemed post accident earning capacity should be at minimum wage retroactive to October 1, 1998. We further find that the claimant is not entitled to a new vocational rehabilitation plan. In reaching these findings we noted the following evidence.
Issue 1: Whether or not the claimant’s deemed post accident earning capacity should be $ 314.78?
As a brief summary, the claimant was hurt in 1989 while working as a bricklayer and was diagnosed as having sustained a disc protrusion. He subsequently became involved with a vocational rehabilitation program with the WCB. We note from the evidence, including that of the claimant, that the claimant is not totally disabled but has compensable restrictions at the medium level. The claimant obtained various job placements over the years and finally obtained work as a delivery driver in 1996. The claimant was let go in October 1998 which the file reveals in a letter dated March 15, 1999 was as a result of downsizing and the employer’s ongoing inability to accommodate the claimant’s restrictions.
We note that in a memorandum to file dated August 27, 1998 it is recorded in a conversation between a WCB vocational rehabilitation counsellor and the claimant’s employer that the claimant’s salary was $5.40/hour and that the claimant had been offered and had declined a raise. The memorandum also revealed information given by the employer that drivers with the claimant’s length of service and experience were being paid $7.88 per hour. Based upon this information the claimant’s deemed post accident earning level was raised which accordingly reduced his benefits.
In this regard we accept the evidence of the claimant given at the hearing that he was not offered, nor did he decline a raise, nor would he have been disposed to decline any such offer. We accept the claimant’s evidence that questions were merely asked as to whether he was satisfied with his current wage level. We also note that, in our view, drivers earning the higher rate of $7.88/hour would be performing full regular duties and not the modified duties being performed by the claimant.
We further note that for approximately two years in a potentially permanent placement the WCB were prepared to accept the claimant as having an estimated earning capacity of $216 (minimum wage) and we note that this position was developed with due regard to the claimant’s compensable restrictions, his age, his educational level, his transferable skills and in light of the fact that the claimant’s primary language is not English.
Considering all the above criteria, we find that at no time has the claimant demonstrated an ability to earn greater than minimum wage. At the hearing the claimant presented as very motivated in his desire to find another position. The claimant demonstrated to us with physical evidence and extensive records that he has initiated and maintained an aggressive and active job search and that many of the jobs he has pursued if successful would be at/or about the level of minimum wage.
Based on all the evidence and taking into account the claimant’s compensable restrictions, his age, his lack of transferable skills, his educational level and his language barriers that the claimant’s deemed post accident earning capacity should be at minimum wage and that this should be retroactive to October 1, 1998 when the claimant’s deemed earning capacity was increased.
Issue 2: Whether or not the claimant is entitled to a new vocational rehabilitation plan/program.
In light of the claimant’s deemed earning capacity and the claimant’s stated ability to earn minimum wage combined with a consideration of the claimant’s lack of transferable skills, his educational level, his age, and his language barrier, we find that a new discretionary vocational rehabilitation plan/program would be unlikely to provide any increased earning capacity on the part of the claimant. In this regard we also have concerns with respect to the cost effectiveness of any such new vocational rehabilitation efforts therefore we find that the claimant is not entitled to a new vocational rehabilitation plan/program.
Notwithstanding our decision not to exercise our discretion and provide the claimant with a new vocational rehabilitation program/plan, we are of the view, in light of the claimant’s demonstrated and as yet unsuccessful efforts to obtain employment that the WCB should consider providing the claimant with further job search/placement services.
Therefore, the claimant’s appeal is allowed in part.
Panel Members
D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of October, 2000